Aspen NORML conference addresses trademarking marijuana |

Aspen NORML conference addresses trademarking marijuana

Karl Herchenroeder
The Aspen Times

The federal government is hypocritical in its handling of submissions for cannabis-company patents, trademarks, trade secrets and copyrights, an attorney argued at the National Organization for the Reform of Marijuana Laws conference in Aspen on Friday.

“The United States Patent and Trademarking Office, in its infinite wisdom, will not issue a trademark for anything that has to do with cannabis-infused products,” said David Branfman, an intellectual-property lawyer from California.

The hypocrisy, he said, is most apparent in the fact that the federal government owns a patent itself for medical treatment using cannabinoids. Furthermore, agencies classify marijuana as a Schedule I drug without any medical value.

“It’s obviously a fascinating anomaly, ripe for litigation,” Branfman said at The Gant, where the conference was held last week. “I’m just waiting for the right client to step up and say, ‘I’m the pioneer.’”

It’s not just the business that will benefit from intellectual property rights, he argued, but the consumer will as well. He used Burger King, McDonald’s and Starbucks as examples for quality assurance.

“You may not love (these companies), but you kind of know what you’re going to get,” he said. “And that is very comforting to people.”

He asked what a cannabis company like Dixie Elixirs & Edibles would do if its product is replicated. A lawsuit in federal court might be thrown out because enforcement of the trademark is illegal, he said.

“The public needs to know, when it goes into a dispensary and it buys something, they need to know that they’re getting something that’s the same as what they could buy in another dispensary, another city or another state,” he said.

His advice for companies dealing with the issue on the federal level is to register trademarks for clothing, logos, website information and other products that are legal. He said it will serve as leverage if and when the Trademark Office reverses its policy.

On the state level, he said an out-of-state entity could license to a business in Colorado, which an audience member argued against.

“If you stand to make any profits or any security in the (Colorado) business, through that licensing agreement, you are in violation of Colorado rules,” Aspen attorney Lauren Maytin said. “All the shareholders are required to be disclosed, so therefore if those shareholders are out-of-state residents, then you’re nixed from the game.”

Branfman said that if it’s true that there is no way for an out-of-state entity to license its trademark to a Colorado company, “Then guess what, you Colorado companies have a big advantage over everybody else. And God bless you, and go with it.”